“Every Soldier and Department of the Army Civilian swears an oath to support and defend the Constitution. That includes the right of the people peaceably to assemble and to petition the government for a redress of grievances.” — Secretary of the Army Ryan McCarthy in a tweet on June 4, 2020
The protests in the aftermath of the killing of George Floyd by a Minneapolis police officer on May 25 have been notable for their breadth and persistence and shocking for the initial extent of destruction in certain cities. But they are just the most recent iteration of a disruptive form of outdoor politics that returned to prominence with Occupy, continued with Black Lives Matter, and increasingly raises the question of how much protection the First Amendment provides to angry, disruptive crowds?
Those who predicted that outdoor assembly, like letter writing or broadcast television, would become anachronistic in the digital age widely missed the mark. The confluence of an awakening to pervasive racism in law enforcement, rising economic inequality, and hyper-partisan polarization has brought large crowds on to America’s streets with a frequency and passion not seen since the 1950s and 1960s. Invigorated by social media, which significantly lower the costs of mobilizing, these post-millennial protest movements have engaged and energized individuals from various walks of life and of different political stripes, mainstream and fringe, many of whom have not previously engaged in public politics.
They have also provoked a backlash. Even some liberal academics have expressed consternation about the legitimacy of “coercive” forms of protest in a liberal democracy. The shocking decision to use force to clear peaceful protestors in Lafayette Square in Washington, D.C., to make way for President Donald Trump’s “law and order” photo-op is just the most egregious example of such backlash. Moreover, while news outlets catalogue Trump’s routine disrespect for acts of dissent by his critics—even those that are unquestionably “peaceable,” such as kneeling during the national anthem, equally insidious efforts to delegitimize protest politics fly under the radar. Few have focused on recent efforts by state legislatures to render a wide swath of protest tactics unlawful. While many of these legislative efforts stalled, and many were likely unconstitutional, they remain significant as efforts to delegitimize the disruptive tactics of recent resistance movements and to narrow the contours of our constitutional rights.
The First Amendment unquestionably guarantees the right of protestors to be disruptive. Thus, much of what has occurred on the streets these past 10 days is constitutionally protected. But given the absence of clear guidance from courts as to exactly how much disruption is constitutionally protected, the policing of peaceful protest often burdens those constitutional rights. Indeed, this is clear when you hear what Army Secretary Ryan McCarthy actually told his troops in person (versus what he tweeted): “If they protest peacefully, that’s fine, that’s what we all swore to protect, that ideal.” At what point does disruption cease to be peaceable?
The First Amendment guarantees “the freedom of speech” but also “the right of the people to peaceably assemble, and to petition the government for a redress of grievances.” It ensures the people’s access to streets and public places for “purposes of assembly” as “a part of the privileges, immunities, rights, and liberties of citizens.” Moreover, like the right to petition—with which it was originally paired—the right protects not only the people’s right to collective public deliberation on issues of public importance, but also their ability to check governmental abuses of power.
Its protection thus extends to disruptive protests. Indeed, disruptive protests were a central tactic of resistance to the British. When the Sons of Liberty trespassed and defaced private property by throwing tea into Boston Harbor 250 years ago, Americans viewed their actions as justified under the terms of the customary British constitution. The First Amendment also shields those who exercise the right from discrimination based on their viewpoint. And where unlawful conduct is intertwined with First Amendment activity, there is a presumption that punishments will be post hoc.
Equally certain, the First Amendment’s shield disappears when an assembly descends into violence. Violence to persons or property nullifies the protections of the First Amendment. As summarized in an 1899 treatise, although “the right of the people peaceably to assemble . . . does not prevent interference with the riotous assemblages of the people; where there is no riotous conduct the government cannot interfere.”
While the constitutional significance of the line between violence and nonviolence is cemented in the text of the Constitution, which protects “the right of the people to peaceably assemble,” the term peaceably, like the phrase freedom of speech, is not self-defining. It is this that gives rise to the murkiness in what the Army Secretary McCarthy said to soldiers on June 4 when they were preparing to police the streets of D.C.—“If they protest peacefully, that’s fine, that’s what we all swore to protect, that ideal.” But what counts as “peaceful”? And who gets to decide?
It is here that protestors’ rights get muddier. First, the right to be disruptive is frequently limited in advance by cities as a condition of gaining access to their streets. “[T]he privilege of a citizen of the United States to use the streets and parks for communication of views on national questions . . . is not absolute,” and as with other constitutional rights, “must be exercised in subordination to the general comfort and convenience.” Indeed, the Supreme Court has held that permit requirements for public assemblies are presumptively constitutional. Considered regulations of the time, place, and manner of speech, rather than prior restraints, such regulations are constitutional so long as the justification for the regulation is not content-based, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication. In practice, this test is a low bar. Courts routinely uphold decisions that require protestors to express themselves at a safe distance from their audience. Indeed, the few cases protestors win tend to turn on factual quirks. Occupy’s short-lived victories, for example, involved statutes or regulations that had been adopted specifically in response to the movement and thus reeked of viewpoint discrimination.
The result is that modern protest organizers face a dizzying array of restrictions, limiting the ability of peaceful protestors to engage in disruptive protests—even though it is often the ability to bring a city to a standstill that forces recognition and compels the attention of elected officials as we saw last week. While New York City’s 176-page permitting guide is particularly extreme, the fact is that in most cities there is not an automatic right to gather in public streets, let alone on highways. A survey of 20 American cities in 2008 reveals that all of them had extensive permit requirements for gatherings on public streets and most had similar requirements for public parks.
Second, law enforcement routinely uses low-level criminal law to maintain order during large assemblies, curtailing the First Amendment rights of peaceful protestors. Policing the line between constitutionally protected protests and those that are unlawful is unquestionably a very difficult task. Unfortunately, police officers— especially those sent out in riot gear—do a remarkably imperfect job of distinguishing between the serene, angry, and violent elements of a crowd, particularly when all are present in a single demonstration. Thus, nonviolent peaceful participants in protests are frequently arrested for misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders. It is also common for police to disperse crowds, including forcefully, for violating terms of their permits or curfews, even when the crowd remains nonviolent. Sometimes such decisions are successfully challenged in court, especially when they can be proved to be actual policies versus spur-of-the-moment decisions. More often, however, charges are dropped or juries acquit, leaving little precedent to help delineate what is constitutionally permissible in these situations.
Taken together, the discretion conferred by municipal rules governing access to public space and existing criminal law significantly circumscribe protestors’ expressive freedom, especially their right to be disruptive. The pervasiveness and complexity of existing time, place, and manner restrictions effectively enable local officials to control the rights of those seeking to assemble peacefully in public spaces, while the frequent use of catch-all public order offenses to control peaceful demonstrations, as a practical matter, devolves the decision of what is “peaceful” to law enforcement.
Finally, while the crime of riot, and its predicate, unlawful assembly, traditionally required significant levels of actual violence to persons or property, some states have lower that threshold. Consistent with Brandenburg v. Ohio (1969), California provides that an unlawful assembly can be declared only when a group is violent or poses a clear and present danger of imminent violence. But statutory definitions of unlawful assembly and riot in other jurisdictions, including in New York and Minneapolis, do not require require the element of violence, criminalizing instead concerted “law-breaking.” This may be sensible when one is considering altercations on the street. However, the question of whether these redefinitions are constitutional under the First Amendment, or whether they prematurely lower the First Amendment’s shield, is much more complicated. For one, there is good reason to believe that the original meaning of the term “peaceable” was not intended to be “to be confused with ‘legal’ or ‘permissible.’” Unfortunately, the question has never squarely been resolved by the Supreme Court, once again leaving protestors’ First Amendment right to disruption murky.
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The bottom line is that too often, during the most critical times, it is law enforcement that effectively decides the scope of what expressive behavior is constitutionally permitted. This situation is an unsustainable burden on First Amendment rights—one that is especially concerning at a time of rising backlash against the right for speakers, crowds, even the press, to voice dissent. Americans could wait for the Supreme Court to clarify their constitutional rights. But they could also act now to demand that their legislatures vindicate the Founders’ protections for disruptive but nonviolent crowds, by limiting the use of tear gas, pepper spray, and other chemical agents in policing public protest, by circumscribing the discretion afforded to law enforcement to disperse crowds or to arrest individual protestors for catch-all public order offenses, and by demanding statutory limitations on crimes from obstruction of traffic to unlawful assembly and riot when applied to contexts involving expressive activity.
The right of peaceable assembly was included in the First Amendment to preserve the promise of fundamental change in the name of self-governance, to ensure the power to end a much-despised international conflict such as Vietnam or to demand fairness and justice for all who have encounters with the police. To serve this function, the authors of the First Amendment recognized that public assemblies must be permitted to be disruptive. It is time that we, in the 21st century, recognized the same.